Trial of the Judges

The satta market in usually languorous Lucknow went into frenzied overdrive on September 27, the eve of the Supreme Court judgment on Ayodhya. The odds favoured the court deferring the judgment 3:1. Even more frenetic was the betting on the Allahabad High Court verdict-7:1 in favour of a split verdict. The more volatile punters claimed to have access to inside information from within the high court, on which of the three judges had voted where.

Tension had peaked as September 24, the date for delivering the Allahabad High Court judgment, neared. The corridors of the High Court in Lucknow where all three judges-Dharam Veer Sharma, Sudhir Agarwal and Sibghat Ullah Khan-worked were buzzing with rumours. Gossip ruled, and it was totally wild. "The IB has a dossier on Justice A's Saudi connections... Justice B has been threatened? Justice C is contemplating joining politics after he retires...''

Meanwhile in Delhi, a quiet, secret game went into play. The Government decided to check if there was any way the verdict could be deferred, despite the fact that Justice Sharma was going to retire on October 1. This would make the judgment infructous. Between September 24 and 27, the Union Home Ministry was in constant touch with the Chief Justice of India's (CJI) office, providing information on the developing situation, which is a usual practice whenever a serious national issue with inflammatory consequences is involved. IB Director Rajiv Mathur briefed CJI S.H. Kapadia on developments in Uttar Pradesh and other sensitive states. But this stopped once the Congress realised through signals from Muslim localities that deferring the judgment would anger the community.

It was a retired government employee Ramesh Chandra Tripathi who aided the political confabulations. Less than two weeks before the judgment day, he filed a petition in the high court, seeking its deferment, citing law and order problems, and asked for a last effort for an amicable solution. The court threw out the petition on September 17, adding a few stinging observations.

Much to everyone's surprise, however, the Supreme Court agreed to hear the petition. And the politicians saw a chance. Senior ministers like Finance Minister Pranab Mukherjee, Home Minister P. Chidambaram and Defence Minister A.K. Antony met regularly to assess the situation. Would the Government be able to handle communal riots if they occurred? Three meetings on this subject were held at the PMO, attended by Chidambaram, Cabinet Secretary K.M. Chandrasekhar, Director General of Police (DGP) of Uttar Pradesh Karamveer Singh, Haryana DGP Ranjiv Singh Dalal and Maharashtra DGP A.N. Roy. Union Home Secretary G.K. Pillai also briefed the Principal Secretary to the Prime Minister TKA Kutty Nair. The Home Ministry instructed the Telecom Ministry to ban all bulk SMS and MMS to prevent inflammatory rumours around the verdict. The delay strategy was not abandoned till the last minute. Attorney General G.E. Vahanvati was briefed to argue in the Supreme Court that he could not study more than 6,000 files and depositions, asking for time. But the Congress realised that this would smear the Government's image further. So, it instructed Vahanvati not to oppose the Supreme Court's wishes.

Meanwhile, other options to postpone the verdict were being explored. A senior Supreme Court counsel had novel advice to offer, "When does a judgment become effective-when it is signed or is pronounced?'' His too-clever-by-half suggestion was to get the judgment written and placed in a sealed cover. Break the seal when it is politically convenient. This was dismissed as legally unsupportable.

The maverick individual behind the delay effort, Tripathi, had made his move as late as September 9. Lucknow's eminent lawyer Prashant Chandra remembers how Tripathi walked into his office, clutching a sheaf of files. "He showed me clippings from various newspapers," said Chandra. These included news reports about troop movements in Uttar Pradesh and possible communal tensions. When india today chased down Tripathi, he explained philosophically that everything happened in its own time. "Why does a child take nine months to come out of its mother's womb?'' he asked. One minute Tripathi quoted Rabindranath Tagore's verses, the other he talked about saving the country from a dark future. "I had to try. Or else I would not have died in peace."

The Supreme Court asking the Allahabad High Court to defer its decision on the eve of judgment day in the Ayodhya case is unprecedented.

This article appeared in the India Today magazine dated October 11, 2010. Subscribe to the print copy or read it on iPad.

When his plea was discussed on September 17, Justices Agarwal and Khan dismissed Tripathi's plea on the grounds that it lacked merit. They also imposed "exemplary costs" of Rs 50,000, terming his effort for an out-of-court settlement as a "mischievous attempt". There was another twist in the story as Justice Sharma refrained from signing the order, later protesting that the other two judges did not consult him. An isolated Justice Sharma gave an individual order on September 20, going public with his dissent. He said efforts should be made for an amicable settlement. His public dissent triggered speculation that the case was headed for a split verdict.

Seers outside the Supreme Court.

In the Supreme Court, the case was taken up by an expanded bench headed by the CJI after a double bench failed to reach a verdict. Justice Kapadia chose Justice Aftab Alam to sit on the bench along with Justice K.S. Radhakrishnan. After much speculation and suspense, the bench dismissed the petition, paving the way for the high court to give its verdict.

Among the judges delivering the historic judgment is Justice Agarwal. At 52, he is the youngest of the three high court judges. He is suave and well-dressed. He loves to watch soaps and is addicted to comics, squabbling with his children over them. But levity in his private life apart, the judge is unbending in his approach and plays by the book. Amid all the legal turmoil, Justice Agarwal continued to lead a normal life, going out and socialising with his friends and family. "Not even once did it appear that he was under pressure," says an advocate well known to him. "We joked with him that not a hair of his head was out of place. After all, he was one of the judges deciding the most important case in modern India."

But Agarwal would only dismiss it as just another case. A lawyer who practiced for 25 years in the Allahabad High Court before becoming a judge, he was appointed additional advocate-general in September 2003, soon after Mulayam Singh Yadav became the chief minister of Uttar Pradesh. He joined the Allahabad High Court bench in October 2005 and was confirmed as a permanent judge in August 2007. Known for his incisive and precise judgments, Agarwal's verdicts have seldom been overturned by the Supreme Court. Some lawyers, however, who have been representing Hindu parties in the Babri Masjid case complain that Agarwal is too harsh on them. "He has ambitions to go down in the annals of history as a secular judge," says one of them. "He was harsh on us, but his demeanour with the opposing parties was extremely congenial."

The Government was ambivalent about the apex court decision till the last minute, but found it difficult to interfere with the judicial process.

Justice Agarwal's judge-in-arms on the verdict, Justice Khan joined the Special Bench in January 2010, after his predecessor Justice S.R. Alam was elevated as the Chief Justice of the Madhya Pradesh High Court. Since there was no Muslim judge in Lucknow, he was brought specially from Allahabad to be the third judge on the bench. The 58-year-old did his law from Aligarh Muslim University, where he was junior to the Sunni Waqf Board lawyer Zafaryab Jilani, who recollects that Justice Khan always kept a low profile and did not participate in activities such as debating, like most of them. Khan, a Shia, is known to be extremely polite with impeccable manners. "There is nothing flashy about his lifestyle. He dresses up soberly and rarely socialises in the legal fraternity,'' says advocate D.P. Gupta.

Most lawyers representing Hindu organisations in the case say that he would always give them a patient hearing, unlike Justice Agarwal. Incidentally, both were colleagues in the Allahabad High Court Bar as lawyers. Khan has a penchant for out-of-court settlements and believes in amicable solutions so that fewer cases come to court. He has settled more than 2,000 cases through negotiation.

Chidambaram

With judges like these handling the case, both in the Allahabad High Court and in the Supreme Court, the Government found it difficult to interfere with the judicial process. A prominent lawyer and legal functionary from Madhya Pradesh, and a Mumbai advocate considered close to the Maharashtra Government, tried to intercede between the Government and the judiciary but the judges rebuffed them.

The escape route for the Government was to let the judgment be delivered. On the eve of the historic high court judgment, the usually brusque Chidambaram could only end his appeal for peace and calm with Mahatma Gandhi's favourite bhajan: Ishwar Allah Tero Naam, Sabko Sanmati De Bhagwan.

This article appeared in the India Today magazine dated October 11, 2010. Subscribe to the print copy or read it on iPad.

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